Commissioners for Administrative Investigations

L.N. 250 of 2012

OMBUDSMAN ACT

(CAP. 385)

Commissioners for Administrative Investigations

(Functions) Rules, 2012

IN exercise of the powers conferred by article 17A of the

Ombudsman Act, the Ombudsman, after consultation with the Prime

Minister, has made the following rules:-

(1)

The title of these rules is the Commissioners for Citation and

commencement.

Administrative Investigations (Functions) Rules, 2012.

(2) (a)

These rules shall come into force on the 1st of

August, 2012, with the exception of the definition of "education

provider" and Part III of these rules;

(b)

the definition of "education provider" and Part III

of these rules shall come into force on the 1st November, 2013.

Part I - Preliminary Provisions

(1)

In these rules, unless the context otherwise Definitions.

requires:-

''the Act" means the Ombudsman Act;

"the Commissioner" means a Commissioner for Administrative

Investigations appointed in terms of article 17A of the Act;

"education provider" means a public provider of further or

higher education, whether established under the Education Act or Cap. 327.

otherwise, and includes the following providers and any company,

institute, centre or any other body established by them

(a)

the University of Malta;

(b)

the

Malta

College

of

Arts,

Science

and

Technology;

(c)

the Institution of Tourism Studies; and

(d)

a public or private provider acting for or on behalf

of a public provider of further or higher education;

"function" shall have the same meaning as is assigned to it in

article 3(1) of the Interpretation Act;

"further education” shall have the same meaning as is assigned

to it in article 63 of the Education Act;

"health service" means a health service provided by the

Government, other authority, body or person to whom the Act

applies, whether such service is preventive or curative, and includes

(a)

a hospital, an establishment and service mentioned

in articles 6 and 16(2) of the Department of Health

(Constitution) Ordinance or any law substituting it which sets

out or defines such health service;

(b)

a pharmacy, laboratory service, community health

care service, clinic and any other service that forms part of a

public health service; and

(c)

a health service as aforesaid which is provided for

or on behalf of Government through the private sector;

"health care professional" means a person who is authorised to

practise a health care profession regulated in accordance with the

Health Care Professions Act;

"higher education” shall have the same meaning as is assigned

to it in article 63 of the Education Act;

"the Malta Environment and Planning Authority" means the

Malta Environment and Planning Authority established by article 6(1)

of the Environment and Development Planning Act.

(2) Unless the context otherwise requires, expressions used in

these rules shall have the same meaning assigned to them in the Act.

Part II - Functions Applicable to all Commissioners for

Administrative Investigations

(1)

All complaints in respect of sectors that fall under

the jurisdiction of a Commissioner for Administrative Investigations

appointed in terms of article 17A of the Act shall be submitted in the

first instance to the Ombudsman.

(2) Where a complaint is addressed to, or received by a

Commissioner without having been submitted to the Ombudsman, the

said Commissioner shall forward such complaint to the Ombudsman

so that the Ombudsman may proceed in accordance with the

provisions of rule 4.

(1)

The Ombudsman may assign complaints received Assignment of

complaints to be

in terms of rule 3 for investigation to a particular Commissioner.

investigated by

a

Commissioner.

(2) In assigning a complaint as aforesaid, the Ombudsman

shall consider the nature of the complaint and the functions assigned

to Commissioners who are in office from time to time and as provided

for in the Act and in these rules.

(3) In carrying out his duties under sub-rules (1) and (2), the

Ombudsman shall comply with the provisions of the Act and these

rules and any question whether a complaint is duly assigned to a

Commissioner shall be determined by the Ombudsman.

(4) Where the Ombudsman is of the view that a complaint

does not fall within the functions of a Commissioner, the Ombudsman

shall in his discretion either investigate that complaint himself or else

delegate the investigation thereof to another Commissioner.

(5) In the case of complaints which fall within the functions of

two or more Commissioners, the Ombudsman shall decide to which

Commissioner the complaint shall be assigned and, for all intents and

purposes of law, the said Commissioner shall have jurisdiction to

investigate such assigned complaint.

(6) Where a complaint falls within the functions of one

Commissioner but contains elements which go beyond those

functions, the Ombudsman may decide to delegate that part of the

complaint which goes beyond the Commissioner's functions as set out

in these rules to that same Commissioner, or to another

Commissioner, or the Ombudsman may decide to investigate the

complaint himself.

(1)

In the exercise of their functions under the Act or Duty of

any other law and these rules, it shall be the duty of Commissioners to Commissioners

in the exercise

comply with any Code of Practice and Procedure which the of

functions.

Ombudsman may from time to time set out for this purpose.

(2) In determining whether to initiate, continue or discontinue

an investigation under the Act, a Commissioner shall act

autonomously and in accordance with the procedures and processes

laid down by the Act and by these rules.

(3) Where there is no evidence of maladministration, a

Commissioner shall not investigate further a complaint.

(1)

Own initiative investigations that fall within the Regulation of

functions of a Commissioner shall be carried out by such own

investigations.

Commissioner following consultation with the Ombudsman.

(2) In an own initiative investigation due to be carried out by

two or more Commissioners which in substance concerns the same

merits, the Ombudsman shall entrust such investigation to the

Commissioner considered most suited for the purpose of carrying out

such investigation.

A Commissioner to whom a complaint has been assigned

or an investigation has been entrusted may consult another

Commissioner in respect of the particular merits of the matters being

investigated.

Nothing in these rules shall preclude the Ombudsman from

delegating to a Commissioner the investigation of any complaint or

element in a complaint which goes beyond the functions of a

Commissioner as set out in these rules.

(1)

If a situation arises where it appears that a

Commissioner may have a conflict of interest in the exercise of the

functions of his office, the Commissioner shall consult with the

Ombudsman who shall provide guidance in accordance with the Code

of Practice and Procedure referred to in rule 5(1).

(2) Where the Ombudsman concludes that such a conflict of

interest exists, he shall invite the Commissioner subject of the

allegation to such a conflict of interest to remedy the conflict.

(3) The Commissioner shall comply with the Ombudsman's

decision. The said decision shall be final.

The term of office of a Commissioner shall be that

provided in articles 5 and 17C of the Act.

Each Commissioner shall have the functions set out in

these rules in addition to those set out in article 13 of the Act, in so far

as the latter provision applies mutatis mutandis to the Commissioners.

For the purposes of an investigation pursuant to a

complaint, the Commissioner shall have the same powers mutatis

mutandis as the Ombudsman has under article 19 of the Act.

The Commissioner shall not entertain a complaint, unless

it is made not later than six months from the day in which the

complainant first had knowledge of the matters complained about; but

the Commissioner may, in his discretion, conduct an investigation of

such complaint if he considers that there are special circumstances

which make it proper for him to do so.

A Commissioner shall not replace internal complaints Saving the

operation of

mechanisms.

internal

complaints

mechanisms.

Where the Ombudsman has decision-making powers under Ombudsman's

decisions under

this Part, his decision shall be final.

this Part.

Part III - Commissioner for Education

A Commissioner for Administrative Investigations Commissioner

appointed in terms of article 17A(2) of the Act to investigate matters for Education.

related to the specialised area of further or higher education shall be

called the "Commissioner for Education".

The Commissioner for Education shall investigate Functions of

Commissioner

complaints related to a service provided by an education provider.

for Education.

(1)

The Commissioner for Education shall have no Matters

functions relating to the exercise of academic jurisdiction unless there excluded

the jurisdiction

is evidence of maladministration.

of the

Commissioner

for Education.

(2) Unless there is evidence of maladministration, the

Commissioner may not investigate any policy or decision taken by

academic bodies on matters concerning academic provision, course

management issues (such as examination results, degree

classification, grades and grade review, academic supervision of

students, quality and organization of academic teaching, academic

teaching load, decisions by academic panels or appeal bodies, the

nature or content of courses, academic awards, etc.), academic

misconduct, academic integrity, academic study or research

programmes, academic policies and practices, academic regulations

and course requirements.

Part IV - Commissioner for Environment and Planning

A Commissioner for Administrative Investigations Commissioner

appointed in terms of article 17A(2) of the Act to investigate matters for

and Planning.

related to the specialised areas of environment and development

planning shall be called "Commissioner for Environment and

Planning".

(l)

The Commissioner for Environment and Planning Functions of

shall investigate complaints related to the workings of the Malta Commissioner

for Environment

Environment and Planning Authority in the exercise of its functions and

under the Environment and Development Planning Act.

(2) Such function shall also extend to those services which the

said Authority outsources and which are provided on its behalf.

Part V - Commissioner for Health

A Commissioner for Administrative Investigations

appointed in terms of article 17A(2) of the Act to investigate matters

related to the specialised area of health shall be called "Commissioner

for Health".

The Commissioner for Health shall investigate complaints

related to a health service.

The Commissioner for Health shall not investigate any

action taken by health care professionals in the exercise of their

medical and clinical judgment for the diagnosis of illness or for the

treatment of patients; nor shall he investigate any technical merits of

decisions taken by health care professionals, unless there is in either

case proof of maladministration by the person providing the health

service in the exercise of his professional competence or professional

discriminatory action.

€0.54